When an automobile accident occurs, the consequences can be life altering. For some, the injuries sustained can lead to a determination of catastrophic impairment. Understanding what catastrophic impairment is, how it’s defined in Ontario, and who makes a determination will allow you to be better prepared in the situation where you have suffered a permanent injury and believe you are catastrophically impaired.
Catastrophic impairment is a legal definition constructed by the Statutory Accident Benefits Schedule (SABS) to govern accident benefits claims. In Ontario, individuals who are considered catastrophically impaired are entitled to more substantial accident benefits than someone who experiences non-catastrophic or minor injuries.
Types of Injury Impairment
The SABS sets out three categories of injuries to determine how much money will be available to an individual after being injured in an automobile accident. Each person’s situation may differ depending on the type of benefits they have chosen, as optional benefits may entitle a person to further coverage.
Minor Injury Guideline
An individual will be classified under the Minor Injury Guideline (MIG) if they experience whiplash-related injuries, muscle strains or strains, contusions, or lacerations. An individual who falls under the MIG is entitled to $3,500 for their medical rehabilitation needs.
An individual who does not fall into the MIG will be classified as non-catastrophic. This typically provides up to $65,000 of medical rehabilitation and attendant care funding for up to five years from the date of the accident. For minors who have suffered injuries relating to a motor vehicle accident the duration of these benefits is funded for no more than 10 years for a minor who was 15 to 17 years old at the time of the accident; or until the minor turns 25 years old, if the minor was less than 15 years old at the time of the accident.
If a person has sustained more serious injuries than indicated in the MIG or non-catastrophic designations, they may meet the description of catastrophic impairment. To be found catastrophically impaired, a person must meet certain criteria as set out in the SABS.
A person who has suffered catastrophic impairment is entitled to a minimum of one million dollars over their lifetime for medical, rehabilitation, and attendant care benefits.
Catastrophic Impairment Criteria in Ontario
When determining catastrophic impairment designation, the SABS looks at impairments rather than the injury itself. The current (post-June 2016) legislation describes the following as “catastrophic impairments”:
- Paraplegia or tetraplegia that meets the following criteria:
- The insured person’s neurological recovery is such that the person’s permanent grade on the ASIA Impairment Scale can be determined.
- The insured person’s permanent grade on the ASIA Impairment Scale is or will be,
- A, B or C, or
- D, and
- the insured person’s score on the Spinal Cord Independence Measure is 0 to 5,
- the insured person requires urological surgical diversion, an implanted device, or intermittent or constant catheterization to manage a residual neurological impairment, or
- the insured person has impaired voluntary control over anorectal function that requires a bowel routine, a surgical diversion, or an implanted device.
- Severe impairment of ambulatory mobility or use of an arm, or amputation that meets one of the following criteria:
- Trans-tibial or higher amputation of a leg.
- Amputation of an arm or another impairment causing the total and permanent loss of use of an arm.
- Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure is 0 to 5.
- Loss of vision in both eyes that meets the following criteria:
- Even with the use of corrective lenses or medication,
- visual acuity in both eyes is 20/200 (6/60) or less as measured by the Snellen Chart or an equivalent chart, or
- the greatest diameter of the field of vision in both eyes is 20 degrees or less.
- The loss of vision is not attributable to non-organic causes.
- Even with the use of corrective lenses or medication,
- If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria:
- The injury shows positive findings on a computerized axial tomography scan, magnetic resonance imaging, or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly.
- When assessed in accordance with the Glasgow Outcome Scale, and the Extended Glasgow Outcome Scale the injury results in a rating of,
- Vegetative State (VS or VS*), one month or more after the accident,
- Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or
- Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.
- If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:
- The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging, or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift, or pneumocephaly.
- The insured person is accepted for admission, on an in-patient basis, to a program of neurological rehabilitation in a paediatric rehabilitation facility that is a member of the Ontario Association of Children’s Rehabilitation Services.
- One month or more after the accident, the insured person’s level of neurological function does not exceed category 2 (Vegetative) on the King’s Outcome Scale for Childhood Head Injury.
- Six months or more after the accident, the insured person’s level of neurological function does not exceed category 3 (Severe disability) on the King’s Outcome Scale for Childhood Head Injury.
- Nine months or more after the accident, the insured person’s level of function remains seriously impaired such that the insured person is not age-appropriately independent and requires in-person supervision or assistance for physical, cognitive, or behavioural impairments for the majority of the insured person’s waking day.
- A physical impairment or combination of physical impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, results in 55 percent or more physical impairment of the whole person.
- A mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, that, when the impairment score is combined with a physical impairment and combining requirements in the guide, results in 55 percent or more impairment of the whole person.
- An impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, results in a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder.
Determination of Catastrophic Impairment
A determination of catastrophic impairment is usually made by your insurance company at the recommendations of medical professionals. Some injuries, such as paraplegia, total loss of vision in both eyes, and complete loss of use of lower or upper extremities, are automatically deemed as catastrophic.
In most cases the injured person, or their representatives, will obtain medical opinions from experts to support the conclusion that they have reached a permanent impairment that is classified as catastrophic under the law. If the insurer disagrees with the experts, they are entitled to a second opinion and catastrophic impairment assessments from their own experts.
In cases where an insurance company and injured person do not achieve the same conclusion (i.e. one party maintains catastrophic impairment and the other disagrees), the matter will be brought before the Licence Appeal Tribunal. In this situation an adjudicator will allow both parties to present their evidence, and will make a final determination regarding the injured person’s impairment.
Obtaining a determination can be a long, drawn-out process. It is recommended that you work with a personal injury lawyer with experience in catastrophic impairment determinations and who has had experience with appearing before the Licence Appeal Tribunal. A lawyer who can effectively advocate for you and your rights can help guarantee that you are treated fairly and that you receive the appropriate determination.
If you or someone you love has been denied catastrophic impairment by your automobile insurance provider, we encourage you to contact us for a free consultation. Roger R. Foisy & Associates is a team with extensive experience in handling complex personal injury and long-term disability cases, and are lawyers for the people who fight to receive maximum dollars for their clients.
For more information on catastrophic impairment, please visit our Frequently Asked Questions page.
Roger R. Foisy, Harpreet S. Sidhu, and Daniel Berman are Ontario Personal Injury Lawyers with extensive experience in motor vehicle accident cases. They are strongly supported by Rusald Laloshi, a senior paralegal who has also represented many clients before the LAT. If you have been injured in a motor vehicle accident, please get in touch with us for immediate support and a free consultation.